When considering the role of judges today,
most Americans emphatically agree with a declaration made two centuries ago by
Founding Father Elbridge Gerry, a signer of the Declaration of Independence and
a framer of the Constitution and Bill of Rights. In describing the role of
federal judges at the Constitutional Convention in 1787, Gerry succinctly
declared:

It was quite foreign from the nature of their office to make
them judges of the policy of public measures. [1]

Luther Martin, another delegate at
the Constitutional Convention, agreed, declaring:

A knowledge of mankind and of legislative affairs cannot be
presumed to belong in a higher degree to the Judges than to the Legislature. [2]

Two centuries later, Americans still believe that
the courts should not be lawmakers or super-legislatures; but they also believe
that the courts have wrongly taken unto themselves this role, especially in the
area of religious expressions. A recent poll found that seventy-seven percent
of the nation felt that “the courts have overreacted in driving religion out of
public life,” and fifty-nine percent believed that the judiciary was singling
out Christianity for attack. [3]
Such opinions are not surprising when considering that judges and public
officials currently:

·Censor religious words from student graduations but
allow all other words [4]

·Allow classrooms to have information on Eastern
Oriental and Native American religions but not on Christianity [5]

·Require students to participate in an indoctrination to
Islam in which they must pretend they are Muslims and pray to Allah [8]
but prohibit those same students from saying “under God” in the Pledge of
Allegiance[9]

·Require that if Christians pray public prayers, they
may not use Christian words [10]

There
are many other examples reflecting a similar hostility to Christianity –
and this is only one of the many areas in which judicial activism is evident.
Citizens have become critical of judges legislating their own personal views
through judicial fiat not only in the area of religious expression but also in
the areas of marriage, education, criminal justice, and many other subjects.
Yet, when citizens publicly express their disapproval of judicial activism,
judges respond with stern warnings that to criticize the judiciary endangers
the country and threatens our form of government.

For
example, following two decisions in which the U. S. Supreme Court used foreign
precedents to strike down American laws, Justice Sandra Day O’Connor (picture
on left) publicly condemned the verbal attacks on the judiciary in the wake of
the Court’s irresponsible and unprecedented action. [11]
Similarly, Chief Justice of the Massachusetts Supreme Court Margaret Marshall
(center picture), who bypassed the legislature and judicially ordered the
official recognition of homosexual marriages, warned that those criticizing her
decision were “threatening public trust in the judicial system, a cornerstone
of democracy.” [12] And in
hearings before the U. S. Senate Judiciary Committee, federal judge Joan Lefkow
(picture on right) called on Congress “to publicly and persistently repudiate
gratuitous [verbal] attacks on the judiciary.” [13]

(Evidently, these judges have
forgotten that the First Amendment protects not only Free Speech in general but
also specifically protects the right of citizens to express their “grievances”
to and about the government. As one national columnist insightfully observed, “Isn’t
it amazing how easily free speech frightens its so-called advocates?”[14]
President Harry Truman’s advice seems appropriate for such judges: “If you
can’t take the heat, get out of the kitchen.”)

These
and other judges warn that public criticism against their decisions “threatens
the independence of the judiciary” and that the opinions of citizens must never
be permitted to influence their branch. The Founders would have been appalled
by such rhetoric, for as Jefferson explained:

We think, in America, that it is necessary to introduce the
people into every department of government. [15]
(emphasis added)

Furthermore, the Founders flatly
rejected the notion that the judiciary – or any branch, for that matter
– was independent from the people. As Jefferson declared:

It should be remembered as an axiom of eternal truth in
politics that whatever power in any government is independent is absolute also.
. . . Independence can be trusted nowhere but with the people in mass. [16]
(emphasis added)

The hyper-sensitivity of judges to what is often
justly deserved criticism, combined with what many times are absurd and asinine
rulings, not only elicits but also deserves the public disapproval they
receive. Yet, it is only the worst judges that become public caricatures of the
judiciary; the reasonable, consistent, and restrained judges (of which there
are hundreds) are rarely noticed. For example, there are currently some 882
federal judges, [17] and each
handles more than 400 cases per year, issuing dozens of rulings, [18]
but the public probably hears about less than one percent of the total rulings
each year – and even then they hear only about the most egregious
decisions; the many good decisions usually go unnoticed. This newsletter will
therefore examine some of the numerous decisions indicating the positive
changes currently occurring within the federal judiciary.

Religious Expressions &
Religious Liberties

Athletic
Prayers

Over recent
decades courts have regularly ruled against public religious activities
involving teachers. (Some courts permit student-led, student-initiated
activities, but activities involving teachers have been curtailed.) Courts hold
that teachers are authority figures and for them to be involved in a religious
activity constitutes possible coercion against students who might feel that if
they didn’t participate that their grade would suffer. Consequently, schools
regularly bar teachers from participating with students in religious
expressions.

For
example, New Jersey high school football coach Marcus Borden was prohibited by
the school from bowing his head and “taking a knee” with his team when his
players voluntarily gathered for prayer before their games. (Coach Borden was a
model coach, having been awarded USA Weekend Magazine’s “National Caring Coach of the Year” and the American
Football Coaches Association’s “National Power of Influence Award.”) Coach
Borden objected to this exclusion from joining with his team and sought relief
in court.

Federal
judge Dennis Cavanaugh ruled that the school had violated Coach Borden’s First
Amendment rights of free speech, academic freedom, and freedom of association.
In fact, after acknowledging that the pre-game prayers were a tradition that
had existed for decades, Judge Cavanaugh stated that for the coach “to not be
allowed to participate in these traditions . . . just doesn't seem right.” [19]

Although
Coach Borden is now free to kneel with his team in prayer, the school warns
that he still cannot pray with them. (Yet, since many prayers are silent, how
will the school know whether he is praying silently when the team prays?
– how will they know when to enforce their ban against him?)
Nevertheless, this ruling is a happy departure from previous rulings in this
area.

(The case was argued on behalf of
Coach Borden by the Seton Hall Lawschool Center for Social Justice. Judge
Dennis Cavanaugh was placed on the federal bench in 2000 by President Bill
Clinton.)

Crosses in City Seals

Over
recent years, numerous federal courts have ordered the removal of Christian
symbols from city seals, even if the symbols appeared for historic reasons.

For example, Zion, Illinois was
founded in 1901 by clergyman John Alexander Dowie, who also founded the major
church in the town. In laying out the city, the north-south streets bore a
Bible name while the east-west streets were numerically numbered. There is no
doubt of the significant religious influence on the formation of the town, and
the city seal acknowledged that religious heritage (after all, what would you
expect from a town named “Zion”?!). Nevertheless, a dissident filed a lawsuit
against the seal and in 1991 the federal courts ordered that the seal be
changed. [20]

Edmond, Oklahoma
experienced a similar effort to censor an acknowledgment of its heritage. In
1887, Edmond was a watering point on the Santa Fe railroad line that stretched
across the buffalo covered prairies of the Oklahoma Territory, and Catholic
priests operated an Indian mission there. Following the Oklahoma land rush of
1889, Edmond grew into a full-fledged town. The Catholic mission built a church
to serve both the Indians and the settlers (the church was used by several
denominations), and other churches were steadily added.

In 1890, the Oklahoma
territorial governor made Edmond the site of a state teachers’ college (now
called the University of Central Oklahoma), and the college met in a church for
its first three years. Not surprisingly, the city’s seal acknowledged the
religious element in its heritage, but an unhappy dissident brought a lawsuit
and in 1995, a federal judge ordered that the seal be changed. [21]
(Rather than adding something new to the seal, citizens simply removed the
“offensive” element and left that portion vacant.)

The city seal of Los Angeles, California, also became the target of attack. Founded
in 1771 (five years before the American Revolution), Los Angeles was birthed
from the work of the Spanish padres, especially Father Junipero Serra. Spanish
missions still dominate the landscape, and even the translation of the city’s
Spanish name affirms its religious roots: “The City of Angels.” Without the
work of the Spanish priests, Los Angeles well might not exist, so the city seal
acknowledged (even though the acknowledgment was extremely minor) its profound
debt to religion in its founding.

Nevertheless, the ACLU threatened a lawsuit,
to which one city official poignantly replied: “Your failure to understand the
history and to rewrite it from the so-called political correctness follows the
hate of past book burners. . . . [The seal’s cross] does not mean that we are
all Roman Catholic, or that everyone who resides in our county is a Christian
– it only reflects our historical roots.” [22]
Nevertheless, in order to avoid the lawsuit, in 2004 the city supervisors voted
3-2 to change their seal.

The city seal of Las Cruces, New Mexico is the most recent to come under attack. That community had its beginnings in 1598,
well before Pocahontas was born, Jamestown was settled, or the Pilgrims arrived
on the Mayflower. Like so many other southwestern states and towns, Las Cruces
owes its existence to the Spanish Catholic explorers and priests.

Las Cruces received its current name in 1830, after eight in a party of nine individuals were massacred by Apaches. The lone survivor (a young choir boy from a nearby mission) buried the other eight, erected a cross on each grave, and then named
the area “El Pueblo del Jardín de Las Cruces” (translated “The Village of the
Garden of the Crosses”). That name was eventually shortened to “Las Cruces”
– “The Crosses.” Given this history, it is not surprising that the city
seal contains crosses – or that the seal became the target of a lawsuit.
Yet, unlike the other suits, federal judge Robert Brack ruled in favor of the
seal [23]
– the first such victory in years!

(Judge Brack was appointed to the
federal bench in 2003 by President George W. Bush.)

Student Expressions

New York Elementary student
Michaela Bloodgood wanted to share with her friends at school a flyer she had
written containing her personal testimony. It began: “Hi! My name is Michaela
and I would like to tell you about my life and how Jesus Christ gave me a new
one. I asked Him to come into my heart and save me from my sins.” She then
listed several specific prayers God had answered and closed by saying: “Now
that I am saved, God gave me peace in my heart and the truth that I am going to
heaven instead of the other place. Praise the Lord.”

School officials forbade Michaela
from giving this flyer to her friends, even during free time. They inanely
reasoned that Michaela’s friends receiving the flyer would mistakenly believe
that it was the school’s message instead of Michaela’s.

(This is a position taken by far too many school attorneys and judges – that when a student speaks or writes, observers will mistakenly believe that the student is actually giving the school’s official viewpoint rather than his own personal belief. This is the reason students are frequently barred from saying “God” in their personal graduation speeches. Silly, huh?

When a Congressman speaks at a news conference, does any citizen believe that he is speaking on behalf of all 535 Representatives and Senators? Certainly not! All recognize that he is expressing his own personal viewpoint. Similarly, when an athlete is interviewed after a game, do viewers believe that he is speaking for all
athletes in America or just for himself? Or when President Bush speaks, is he
talking for all Republicans – or President Clinton for all Democrats? The
answer is obvious – except to many judges and school attorneys.)

In
their effort to keep students from thinking that Michaela was speaking on
behalf of the entire school administration, school officials banned all
distribution of literature at school. Fortunately, Michaela’s parents were
willing to challenge this policy in court, and federal judge Norman Mordue
emphatically rejected the school’s actions. [24]
The attorney defending Michaela summarized the decision: “Religious speech is
constitutionally protected, even in the public schools. School officials had no
right to silence Michaela’s personal Christian testimony. . . . She has every
right to express her religious views at school, and that right has been
vindicated.”

(This
case was argued by Liberty Counsel. Judge Norman Mordue was appointed to the
federal bench in 1998 by President Bill Clinton. Interestingly, in a religious
liberty case prior to this one – a case involving the religious
expression of kindergarten student Antonio Peck, who included a picture a Jesus
on his artwork [25] –
Judge Mordue was twice unanimously overruled by the Second Circuit Court of
Appeals. Evidently, he got the message; he ruled favorably in this case.)

Prayers at Public Gatherings

In recent years, federal judges
have decreed which words may be used when individuals pray in public, specifically
ruling that using explicitly Christian language is unconstitutional. For
example, in a 1995 case involving graduation prayers, a federal judge ruled:

The court will allow that prayer to be a typical nondenominational prayer, which can refer to God or the Almighty or that sort of thing.

The prayer must not refer to . . . Jesus. . . . And make no mistake, the Court is going to have a United States marshal in attendance at the graduation. If any student offends this court, that student will be summarily arrested and will face up to six months incarceration in the Galveston County Jail. . . . Anybody who violates these orders, no kidding, is going to wish that he or she had died as a child when this court gets through with it. [26]

Similarly, in 1999, a high school
senior was chosen by her peers to offer a prayer at their graduation, but
school officials required that she submit her prayer in advance so that they
could edit it. They struck out innocuous “offending” phrases such as “Heavenly
Father,” “Thank You for having a plan to prosper us,” “Help us to lean on Your
direction and follow in Your footsteps,” and “We love You”; disappointingly,
the federal courts upheld the edits. [27]

In 2006, a federal court prohibited the Indiana legislature from opening in prayer (a 189 year-old tradition) unless the
prayers avoided explicitly Christian words. Significantly, even though the
legislature regularly included Christian, Jewish, and Muslim prayers, the judge
ruled that the Christian prayers must be screened. He listed permissible
phrases to be used in the prayers (including “Lord God, our creator,” “the God
of Abraham, Isaac and Jacob,” “the God of Abraham, of Moses, Jesus, and
Mohammad,” “Heavenly Father,” and “creator of planet Earth, and the universe,
and our own creator”) and decreed that prayers “using Christ’s name or title”
were unconstitutional. [28]

There are numerous others examples
in which prayers are forbidden because Christian words were used, including for
school boards [29] and city
councils. [30]

With
such rulings, many secularist groups have been aggressive in challenging public
prayers – including against the County Commissioners in Cobb County,
Georgia (near the metro Atlanta area). Commissioners there opened their
meetings with prayer but refused to tell any individual what to say in his
prayer. The ACLU therefore filed suit, claiming that by not prohibiting
individuals from using the word “Jesus,” the Commissioners were thus engaging
in an unconstitutional government action. However, federal judge Richard Story
disagreed, and ruled that ministers who prayed to open the meetings could
“identify the deity to whom they direct their prayer” [31]
– including to Jesus. This is a major victory, and a clear reversal from
recent trends.

(Judge Story was appointed as a
federal district judge in 1998 by President Bill Clinton.)

Equal Access to Public Gatherings

In Westside v. Mergens [32]
in 1990, the Supreme Court unanimously held that religious groups may have the
same access to government facilities as all other groups. Nevertheless, many
officials, citing the so-called “constitutional separation of church and
state,” persist in denying the use of public facilities to religious groups.

(The fact that officials place the
word “constitutional” in the same phrase with “separation of church and state”
is unequivocal proof that they are unfamiliar with the Constitution. The
separation phrase appears nowhere in the Constitution or in any of the official
discussions surrounding the framing our founding documents; there is therefore
no “constitutional” separation of church and state.)

One example of public officials refusing equal access recently occurred in Watertown, New York.

Pastor Robert Mikowski of
Relevant Church sought permission to use the Dulles Office Building for Easter
services, but was refused on the basis of “separation of church and state.”
When the church took the city into federal court, [33]
the city relented and permitted the services. As the attorney who represented
the church explained: “Government officials do not have the right to
discriminate against Christian groups by singling them out for exclusion. Once
the state opens up a building for community groups to rent, state officials
must be fair and allow equal access to all groups, including churches.”

(The church was represented by Joe
Infranco of Alliance Defense Fund.)

Faith-Based Programs

The
government has specific responsibilities toward its citizens, including in
areas such as criminal justice, domestic programs, veteran’s care, etc. Years
of experience have unequivocally proven that the government itself is often the
least effective means of delivering its own services. Therefore, for the past
several decades the government has aggressively pursued the free-market
principle of outsourcing – of contracting with private sector entities
that compete with each other to provide specific public services with the
greatest efficiency and lowest cost. Statistics indicate that faith-based
groups are some of the most effective service providers.

For example, the average cure rate
in government-run drug rehab programs is under 20 percent, [34]
but the cure rate for faith-based drug rehab programs such as those offered by
Teen

Challenge
is over 70 percent. [35]
Similarly, 67 percent of those released from government prisons (either state
or federal) will return to prison within 2 years after their release, [36]
while only 8 percent of those incarcerated in a faith-based prison will return [37]
– a recidivism (relapse) rate almost ten time lower than the government
rate.

The impact of these faith-based programs is substantial both in economic and human
terms.

That is, when there is a 90 percent reduction in inmates returning to
prison, then there is a commensurate reduction in the economic amounts expended
to fund law enforcement, courts, and prisons, thereby saving billions of
dollars, reducing government spending, and substantially decreasing the burden on
taxpayers.

However, beyond the economic considerations is the human factor.
Nearly two million children have one parent incarcerated, [38]
and seven million have a parent under state or federal correctional
supervision; [39] statistics
show that these children are seven times more likely to have trouble with the
law, and that seventy percent of them will end up in prison. [40]
But with faith-based prisons dramatically reducing the number of parents in
prison, the family cycle of crime is more quickly broken, thereby reducing
future crimes, crime victims, and criminal justice expenditures.

Faith-based programs work; but it
must be clearly stated that the government does not seek out faith-based
groups. When it seeks to provide a service, it simply releases the criterion
for that particular program and then permits every provider, including
faith-based ones, to compete together in the open marketplace to meet the
requirements and provide that service. The proper concern of government is that
its services be delivered, not whether the provider delivering the service is
religious, secular, or anti-religious.

Two
centuries ago Thomas Jefferson made this point in his 1781 work, Notes on
the State of Virginia. He
described the early British policy in America and how it began to change after
the Revolution:

By our own act of [the Virginia] Assembly of 1705,
if a person brought up in the Christian religion denies the being of a God, or
the Trinity, or asserts there are more Gods than one, or denies the Christian
religion to be true or the Scriptures to be of Divine authority, he is
punishable on the first offence by incapacity to hold any office or employment
ecclesiastical, civil, or military; on the second by disability to sue, to take
any gift or legacy, to be guardian, executor, or administrator, and by three
years imprisonment without bail. . .. But our rulers can have no authority over such natural rights only as
we have submitted to them. The rights of [religious] conscience we never
submitted – we could not submit. We are answerable for them to our God. The
legitimate powers of government extend to such acts only as are injurious to
others. But it does me no injury for my neighbor to say there are twenty gods,
or no god. It neither picks my pocket nor breaks my leg. [41]
(emphasis added)

According
to Jefferson, it is not appropriate for government to examine whether someone
believes in God, or in twenty gods, for it is not the business of government to
establish any religious orthodoxy
– not even the anti-religious orthodoxy that secularists so
fervently desire should become government policy. Yet, in the time of
transition following the American Revolution, some early measures did wrongly
focus on who an individual was rather than what he did.

For example, provisions in the
constitutions of Georgia, New York, Virginia, and other states contained a
provision to the effect that “No clergyman of any denomination shall be allowed
a seat in the legislature.” [42]
While those policy-makers believed that the work of ministers was too important
to be sidetracked by serving in the legislature, [43]
it was nevertheless a policy that treated a person differently simply because
he was a minister. Several Founding Fathers vehemently denounced such policies
– including Thomas Jefferson, who declared:

I observe . . . [in the Virginia] Constitution an abridgment of
[a] right . . . I do not approve. It is the incapacitation of a
clergyman from being elected. [44]
(emphasis added)

Ironically, secularists today have
adopted the very policy already rejected by the Founding Fathers – they
believe that if someone is involved in ministry, then he should be disqualified from delivering
government services. And although
atheists and secularists should praise the work of faith-based groups because
of the success they achieve both in economic and human

terms, they instead attempt to disqualify faith-based groups from providing even purely secular services such as feeding the homeless or manning hospices and
AIDS shelters. Because of their unmitigated religious bigotry, secularists
groups regularly file suit against the government and its faith-based
providers.

For
example, the U. S. Department of Health and Human Services (HHS) offers
programs to strengthen marriages – for obvious reasons, including the
fact that nearly 90 percent of the increase in violent crime between 1973 and
1995 was committed by those raised in a broken home, or a home where a mother
and a father was not present. [45]
Similarly, the murder rate is highest among children raised in those homes, [46]
gang involvement is almost twice as high, [47]
and 75 percent of juvenile criminals come from such homes. [48]
Furthermore, those children are more likely:

·To be abused (abuse is up to 40 times more likely if
children are in a home without a mother and a father) [49]

Additionally,
the average annual income of an intact traditional family is $48,000, while the
average annual income of a single-parent (usually a mother) is only $15,000, [54]
thus producing what is termed the feminization of poverty.

Clearly,
strong marriages reduce the need for federal spending in HHS programs by
billions of dollars, not to the mention the positive impact of strong marriages
on children. For this reason, HHS offers grants for programs to strengthen
marriage.

One group that received a federal grant for
marriage-strengthening seminars was Northwest Marriage Institute (NMI) in the
state of Washington. NMI offers both biblically-based and secular marriage
education seminars, but with federal grant money, it offers only secular
marriage workshops for low-income couples. In fact, the ads publicizing those
workshops openly announce that “because [the seminars] are funded by the U.S.
Department of Health and Human Services, they will contain no religious
indoctrination or scriptural references.”

Yet, even though the seminars were
completely secular, the radical group Americans United for Separation of Church
and State (AU) filed suit against NMI simply because they were a faith-based
group delivering secular services. AU’s suit demanded a payback of the federal
grants that NMI had received as well as a prohibition against receiving any
future grants, but federal judge Franklin Burgess threw the suit out of court. [55]
As confirmed by the attorney handling the case for NMI, the judge “quickly
dismissed this latest attempt to prevent Christians from participating in
publicly funded programs.”

(The case was handled by attorneys
from the Alliance Defense Fund; Judge Franklin Burgess was appointed to the
federal bench in 1993 by President Bill Clinton.)

—
— — — — —

A similar law suit was filed
against the faith-based activities and programs associated with the Veterans’
Administration. In assessing the needs of its patients (some 5.3 million
veterans were treated at VA facilities last year), the VA asks a battery of
questions, including some about whether faith has any role in its patient’s
lives so that they can better identify the services needed. The VA (like the
rest of the military) provides chaplains for their hospitals and those in
out-patient care, and also offers the option of faith-based drug and alcohol
treatment programs. In every case, the services are completely voluntary and
used only by those who request them.

Yet,
simply because these services were available on request, the Freedom From
Religion Foundation (FFRF) filed suit to halt all the faith-based programs and
services, including the use of chaplains. After initial hearings to consider the
objections of FFRF, federal judge John Shabaz, like the judge in the
faith-based marriage suit in Washington, dismissed the case, explaining: “The
choice to receive spiritual or pastoral care, the choice to complete a
spiritual assessment, and the choice to participate in a religious or
spiritually based treatment program always remain the private choice of the
veteran. Accordingly, there is no evidence of governmental indoctrination of
religion.” [56] As the
Associated Press noted, Judge Shabaz took the position that “religion can help
patients heal, and is legal when done on a voluntary basis.” [57]

(Judge John Shabaz was appointed
to the federal bench in 1981 by President Ronald Reagan.)

Military Academies

In
2005, secularist Mikey Weinstein, a 1977 graduate of the Air Force Academy,
filed suit against the Academy, alleging that Christian chaplains there were
coercing their beliefs on cadets, punishing those who would not comply, and
threatening that if they did not attend Christian services, they would burn “in
the fires of hell.” It was also claimed that cadets were forced to attend
prayer meetings and that motivational speakers brought in to speak to cadets
were religious individuals.

When
the charges made national headlines, Air Force officials at the Pentagon
panicked. Rather than waiting for an investigation to determine if the
allegations were true, in August 2005 they quickly issued a new policy
restricting when chaplains could pray, stipulating what could be said in their
prayers, and limiting their opportunities to interact with soldiers. Not
surprisingly, this radical change was met with great resistance by many Members
of Congress (including Representatives Duncan Hunter, Todd Akin, Randy Forbes,
Walter Jones, Marilyn Musgrave, and dozens of others). Late last year, those
Members were successful in getting those restrictions rolled back and the First
Amendment rights of military chaplains fully restored.

Meanwhile,
despite the Pentagon’s over-reaction to the press stories, the process began to
work as it should. An official military review panel investigated the numerous
charges and cleared the Academy. Noting that some cadets and staff members might have (maybe) made insensitive comments, the panel found no
evidence of the systemic problem that had been alleged. (This is an
illustration of the principle in Proverbs 18:17 that “Any story sounds true
until someone tells the other side and sets the record straight.”)

Despite the findings of the
military panel, the civil lawsuit proceeded, but just weeks ago came to an
abrupt end when federal judge James Parker dismissed the case against the
Academy, noting that many of the charges were “simply conjectural and
hypothetical” and that Weinstein not only had failed to identify when those
alleged activities had occurred but also which, if any, cadets had been harmed
by the alleged activities. [58]Major General Jack Rives, the head Air
Force attorney (JAG), announced: “We believe Academy officials performed
properly and that this litigation is one important step . . . in judicial
recognition of that.” [59]

(Judge Parker was appointed to the
federal district bench in 1987 by President Ronald Reagan.)

Protecting Innocent Life

Just as there have been many
good-news judicial decisions in the area of religious expressions, so, too,
have there also been many good decisions pertaining to the protection of
innocent life. Significantly, there has been a steady growth in pro-life
sentiment over recent years, and today, only 24 percent of Americans continue
to support abortion on demand. [60]
Furthermore, there is no longer any demographic group of women that remains
pro-abortion, [61] and only 19
percent of teens support abortion-on-demand. [62]

This steady rise in pro-life
sentiment has been reflected in state and federal legislation. For example, a
decade ago, virtually no state had laws requiringinformed consent or laws banning partial-birth abortions, [63]
yet today such laws are standard fare across the nation – as are parental
notification/consent laws.

Many states also promote life and adoption through
“Choose Life” license plates. In some states, the plates are made available
through specific legislation authorizing the plates, and in other states by
general legislation enabling the Secretary of State to issue specialty plates after
receiving sufficient requests. The specialty plates, whether with logos of
sports teams, environmental themes, or other messages, require citizens to pay
up to $70 extra to receive the special plate.

These
plates clearly exist by means of legislative actions; and pro-abortion groups
diligently fight against those plates throughout the legislative process but
regularly lose because they are so far out of step with both citizens and
lawmakers. Usually, when groups on the Left (whether secularists, pro-abortionists,
or whatever) lose in the legislature, they frequently turn to the courts in an
attempt to coerce on citizens what they were unable to do through the
legitimate law-making process.

For example, atheist Michael Newdow (who filed suit
to remove “under God” from the Pledge of Allegiance, “In God We Trust” from
coins, and prevent prayers at presidential inaugurations), acknowledged that he
originally planned to pursue his agenda through the normal political process
but recognized that he would lose at that level. [64]
He therefore sued, acknowledging that court was the
only place where he stood a chance of winning. [65]

Supreme Court Justice Antonin Scalia is an outspoken critic of using courts to
advance political agendas, believing that “deeply controversial issues like
abortion and suicide rights have nothing to do with the Constitution, and
unelected judges too often choose to find new rights at the expense of the
democratic process.” [66]
Scalia holds that “unelected judges have no place deciding politically charged
questions when the Constitution is silent on those issues.” [67]

Nevertheless, after pro-abortion
forces lost the legislative fight to prevent “Choose Life” plates, they turned
to the courts to stop what they had been unable to halt. As a result, judges in
Arizona and South Carolina prohibited the plates, agreeing with pro-abortion
forces that it was unconstitutional for the state to prefer one viewpoint (the
pro-life position) over another (the pro-abortion position). [68]
Apparently, those judges don’t recognize the obvious fact that each time a
state passes a pro-life law, it is already expressing a pro-life position over
the pro-abortion one, and that such expressions are regularly found to be legal
and constitutional.

An attempt was made to prevent
Illinois from issuing “Choose Life” plates. Illinois law allows the Secretary
of State to issue those plates whenever there are a minimum number of requests,
but he refused to do so, apparently siding with the judicial decisions in
states such as Arizona and South Carolina. A group of pro-life citizens
therefore filed suit to force the Secretary of State to follow state law and
issue the plates. In a ruling contrary to others across the country, federal
judge David Coar held that the Illinois “Choose Life” plates are
constitutional, noting that even though its message was “politically
controversial, . . . the First Amendment protects unpopular, even some hateful
speech. The message conveyed by the proposed license plate is subject to First
Amendment protection.” [69]

As to the argument that the state
is endorsing a pro-life message in preference to the abortion message, an
attorney involved with the case lucidly observed: “If pro-abortion advocates do
not like the message of life, then they have every legal right to develop their
own plate – perhaps one that reads ‘Choose Death.’” [70]

(The
case for Choose Life Illinois was argued by attorney Tom Brejcha of the Thomas
More Society, a conservative public interest law firm. Judge David Coar was
appointed by to the federal district court in 1994 by President Bill Clinton.
In 1998, he issued a sweeping nationwide injunction against pro-life protestors
and in favor of abortion clinics but in 2003, the U. S. Supreme Court overruled
him in an 8-1 decision, and then again in 2006 in an unanimous decision. In
this instance, however, Judge Coar upheld the pro-life, pro-adoption plates.)

—
— — — — —

On
another pro-life front, a number of school officials have prevented students
from wearing T-shirts with a pro-life message, or from distributing pro-life
literature to their friends at school. Sometimes the students wear the shirts
or pass out the literature simply because of their own

individual initiative; at other times, it may be
part of a designated day – such as the January 22nd
anniversary of the Roe v. Wade
decision, or National Pro-Life T-Shirt Day in April. Regardless of the cause,
school officials frequently prohibit students from expressing a pro-life
message.

Such a prohibition might be
permissible if school officials banned all T-shirts with a message, but they
get into legal trouble when they single out just one message. For example,
nearly one-forth of schools observe the April pro-homosexual “Day of Silence”;
other schools commemorate Earth Day or similar environmental observances; in
such cases, they cannot then single out pro-life students to silence their
message (nor can they single out students who wear T-shirts urging traditional
marriage rather than homosexual rights). Nonetheless, many school officials
still persist in their refusals.

Legal action was therefore
recently brought on behalf of pro-life students in several states, including
Virginia, Pennsylvania, New York, Michigan, etc. – and the students won.
In fact, in Virginia, federal judge Samuel Wilson chided the Virginia school
for stifling academic discourse and “trying to cut off written forms of
communication,” even lecturing school officials on the meaning of the First
Amendment and the fundamental rights it protects. [71]
The Michigan ruling struck down a similar school policy, permitting students to
pass out pro-life literature and wear T-shirts with the message “Pray to End
Abortion.” [72]

As a result of such victories,
other schools have begun changing their positions rather than face a court
battle where they are almost guaranteed to lose. As one attorney representing
the students correctly observed: “The courts stand firmly on the side of
peaceful pro-life expression outside of class during school.”

(The action in behalf of the
Virginia students was undertaken by Alliance Defense Fund attorney Matt Bowman;
Judge Wilson was appointed to the federal bench in 1990 by President George H.
W. Bush. The Michigan case was argued by attorney Delia van Loenen, also of the
Alliance Defense Fund; it was decided by Judge Victoria Roberts, appointed to
the federal bench in 1998 by President Bill Clinton.)

The Supreme Court Sets a
New Tone

These are just a few of the many
positive decisions handed down with increasing frequency in the federal courts.
What has contributed to this change? Two clear factors: (1) the recent changes
in the makeup of the U. S. Supreme Court, and (2) the number of
strict-constructionist judges who have recently been appointed to federal
courts of appeals and federal district courts.

The
addition of Chief Justice John Roberts and Associate Justice Samuel Alito has
raised the number of strict-constructionists on the Court from three to four.
(According to my colloquial count, there are currently four Justices who
actually read the U. S. Constitution, four who would rather read the
constitution of any other nation, and one big squish right in the middle who’s
not sure which constitution he should read.) Four solid Justices is a dramatic
improvement of the Court’s composition over the past fifteen years, and in
several important opinions, those four have been able to persuade at least one
of the others to join with them, thus causing cases now to be won by a 5-4 vote
that before were lost by the same margin.

Life

For
example, the Supreme Court recently upheld the federal law banning
partial-birth abortions by a 5-4 vote, [73]
while only seven years ago in 2000, the Court struck down a partial-birth
abortion ban by the same 5-4 margin. [74]
This new ruling is the first time since Roe v. Wade in 1973 that the Court has upheld a complete ban on
a specific type of abortion procedure.

This
ruling culminates years of political efforts. After taking control of Congress
in 1995, Republicans successfully passed two laws banning partial-birth
abortions, but each was vetoed by President Clinton. Probably the most visible
leader during those efforts was U. S. Senator Rick Santorum, who personally
raised millions of dollars to run ads educating the American people on that
barbaric procedure. As a result of such efforts, the percentage of Americans
opposing that practice rose to seventy-six percent. [75]
However, with Congress unable to override the presidential veto, states began
instituting bans. Nebraska’s ban was challenged and overturned by the U. S.
Supreme Court in 2000, thus ending state efforts to ban the procedure.

Work was then begun anew in Congress to create a federal ban that would
forever end the practice. In 2003, that federal ban was signed into law by
President Bush, even establishing a two-year prison term for doctors who
performed a partial-birth abortion. The ban was immediately challenged by the
same abortion doctor who successfully challenged the Nebraska law in the 2000
case. Three federal courts promptly overturned the new federal ban, and three
federal courts of appeals upheld those lower court decisions. However, by the
time the case reached the Supreme Court, two new Justices had been placed on
the Court by President Bush, thus providing the votes necessary to reverse the
Court’s position from seven years earlier.

The recent ruling received both
strong praise and condemnation. On the one hand, 2008 Democratic presidential
candidates were unanimous in condemning the decision – including Senator
Hillary Clinton, who voted for the ban in 2003. Additionally, liberals such as
Ralph Neas of People for the American Way (PAW) saw the ruling as a harbinger
of bad things to come – that Justice Alito had “brought the Court to the
brink of judicial disaster”; and Democratic Senate Majority Leader Harry Reid
– who also voted for the ban in 2003 – similarly denounced the
Court, lamenting the addition of Alito. (Recent interviews reveal that some in
the Senate who voted for the ban had counted on the Court overturning it, thus
allowing them to appear mainstream without actually helping end the gruesome
procedure.)

On
the other hand, 2008 Republican presidential contenders were unanimous in
praising the decision. Additionally, former Senator Santorum, who had worked so
fervently to see the ban become law, declared:

This is a
great victory for humanity in this country. . . . [This] is the first step away
from a society that looks at the life of an unwanted, unborn child as nothing
more than a problem that needs to be disposed of, and the first step toward a
society that respects and values all human li[ves] . . . [as] unique gifts from
the Almighty to be welcomed and loved.

President
Bush also praised the ruling:

I am pleased that the Supreme Court upheld a law that prohibits
the abhorrent procedure of partial-birth abortion. . . . The Supreme Court's
decision is an affirmation of the progress we have made over the past six years
in protecting human dignity and upholding the sanctity of life.We will continue to work for the day
when every child is welcomed in life and protected in law.

This ruling opens the door for
further restrictions on abortion, including at the state level. In fact, states
have already begun moving forward in introducing additional restrictions on
abortion or resurrecting state bans previously struck down. (In what pro-life
advocates hope is a prophetic statement, pro-abortion Justice Ginsburg angrily
predicted that the Court’s decision in this case was part of a movement that
would “chip away” at the “constitutional” right to abortion.) This recent
ruling is actually the second favorable decision delivered by the Court on the
abortion issue; the other involved limiting the use of the Hobbs and RICO Acts.

In the 1980s, abortion clinics alleged that
pro-life protesters who gathered outside abortion clinics peacefully to protest
or to hold prayer vigils were obstructing their commerce and thus violating two
federal anti-racketeering laws. The first was the 1946 Hobbs Act, outlawing the
obstruction of commerce “by robbery or extortion,” and the second was the 1970
RICO Act (Racketeer Influenced and Corrupt Organizations Act), under which two
violations of the Hobbs Act could be considered a “pattern of racketeering
activity” that would entitle the “victims” (i.e., the abortion clinics) to
triple damages. Clinics successfully persuaded police and courts to apply the
Hobbs and RICO Acts against pro-life protesters, resulting not only in arrest
and jail time for protesters (even children) but also in personal bankruptcies
as clinics were able to collect triple damages from protesters.

In 1994, the Supreme Court ruled that the Hobbs Act
could be used against protesters, but in 2003, the Court reversed itself and
held that the activity of pro-life protesters around clinics did not
constitute extortion or the use of “force, violence, or fear” to obtain
another’s property. The Court therefore sent the case back to the lower Circuit
Court to enter a final judgment, but rather than dismissing the case, that
Circuit Court kept the case alive. The case just recently came back to the
Supreme Court, and the Court held – again – that the Hobbs Act (and
thus RICO) does not apply to pro-life protests against abortion or
abortion clinics. [76]
This ruling finally removes a sinister tool that pro-abortionists had used
against pro-lifers exercising their specific First Amendment right to peaceably
assemble and petition for a redress of their grievances, not to mention their
general First Amendment right to free speech.

Marriage

In another favorable action by the Supreme Court,
it refused to pick up a lower court decision challenging the federal protection
of marriage. California was one of the states in 2004 in which officials such
as the mayor of San Francisco were involved in permitting homosexual marriages
in violation of California Prop 22, which declares that marriage is the union
of one man and one woman.

Additionally, the federal DOMA (Defense Of Marriage
Act) applied to California and allowed the state to reject same-sex marriages
from other states. Homosexual activists filed suit against the two measures,
and lower courts upheld both. In fact, in the DOMA case, federal judge Gary
Taylor declared that there was no fundamental right to same-sex
marriage. [77] Homosexual
activists therefore appealed both losses – their loss on the California
statute to the State Supreme Court (which upheld Prop 22), and their loss on
the federal statute to the U. S. Supreme Court, which declined to hear the
case, thus leaving judge Taylor’s ruling as the final word in the Ninth
Circuit, which exercises jurisdiction over seven states and fifty-four million
Americans.

(Judge Taylor was appointed to the
federal bench in 1990 by President George H. W. Bush.)

Religious
Expressions

Last
year after Justice Roberts was placed on the Court (but before Justice Alito
arrived), two Ten Commandments cases came before the Court, one challenging
Texas’ display of the Ten Commandments outside the state capitol and the other
challenging a display of the Ten Commandments among a group of documents in a
Kentucky courtroom. The Supreme Court ruled 5-4 in favor of the Texas display,
and 5-4 against the Kentucky display. (Providentially, the deciding vote in
favor of the Texas Ten Commandments display was cast by Justice Stephen Breyer,
who had no prior history of supporting public religious expressions.)

The
Supreme Court’s decision in favor of the Texas Ten Commandments display (its
first favorable ruling on the Ten Commandments since 1980) allowed lower courts
to follow suit and issue favorable rulings on similar displays. As one national
article observed: “Public displays of the Ten Commandments have enjoyed
unprecedented favor in both the courts and the legislatures since the two Ten
Commandments cases were argued at the Supreme Court last year.” [78]
Such truly has been the case.

For
example, since the Supreme Court’s favorable decision, the Seventh Circuit
Court of Appeals (with jurisdiction over the states of Illinois, Indiana, and
Wisconsin) upheld a Ten Commandments display [79]
– as did the Sixth Circuit Court of Appeals (with jurisdiction over
Kentucky, Ohio, Tennessee, and Michigan) [80]
and also the Eighth Circuit Court of Appeals (with jurisdiction over Arkansas,
Iowa, Missouri, Minnesota, Nebraska, North Dakota, and South Dakota). [81]
Additionally, federal district courts are also now upholding Ten Commandments
displays. [82] In short,
instead of losing most of the cases on this issue, virtually every Ten
Commandments display has been upheld over the past two years. And Georgia
Governor Sonny Purdue just signed a bill permitting Ten Commandments displays
in their public buildings, as did Kentucky Governor Ernie Fletcher.

Clearly, in the areas of life,
marriage, and religious expressions, the Supreme Court has definitely set a new
tone; and the 266 new strict constructionist judges placed on the lower federal
courts over the past six years (now accounting for almost one-third of the
total federal judiciary [83])
have also accelerated the many positive changes.

Conclusion

The significant change currently
underway in the federal judiciary is actually the direct result of increased
evangelical voter turnout in recent elections. Regrettably, those numbers
steadily fell for almost a decade until by the 2000 election, of the 60 million
estimated evangelical voters in America, only 15 million voted – and 24
million were not even registered to vote. However, in 2002, that trend reversed
and there was an upturn in evangelical voter that directly produced a 7 percent
national advantage for federal pro-life candidates. As a result, of the 54
Freshmen elected to the U. S. House in that election, 36 were pro-life (a 67
percent pro-life class), and of the ten Freshmen elected to the U. S. Senate
that election, eight were pro-life (an 80 percent pro-life class – and the
Senate is where the help is most needed).

The 2004 elections continued the
increase in evangelical voter turnout, with numbers rising from 15 million
evangelicals voting in 2000 to 28.9 million in 2004. (Although this is nearly
double the numbers of four years earlier, it is still less than half of
evangelicals voting.) This second increase resulted in a 12 percent national
advantage for pro-life federal candidates. Consequently, of the 40 Freshmen
elected to the U. S. House in 2004, 25 were pro-life (a 63 percent pro-life
class), and of the nine Freshmen elected to the U. S. Senate, seven – or
77 percent – were pro-life. The pro-life congressmen elected over those
two elections quickly became instrumental in the passage of Congress’ first
four major pro-life federal laws that were free standing bills (previous
pro-life victories were typically riders attached to funding bills, such as the
famous Hyde Amendment which prohibited federal funds from being used to perform
abortions). America’s first four stand-alone pro-life laws were: (1) the Infant
Born-Alive Protection Act, (2) the Unborn Victims of Violence Act, (3) the
Partial-Birth Abortion Ban, and (4) the Fetal Farming Ban.

Additionally,
the election of fifteen pro-life U. S. Senators into the Senate over those two
elections resulted in the confirmation of two pro-life Supreme Court justices
and dozens of lower federal court judges, thus producing the changes that are
now becoming evident.

Regrettably, in the 2006
elections, there was a dramatic fall in evangelical voter turnout, with numbers
plummeting from 28.9 million in 2004 to 20.5 million in 2006 – a drop of
8.4 million evangelical voters and a decline of 30 percent. As a result, of the
54 Freshmen elected to the U. S. House in 2006, only 17 were pro-life (a 31
percent pro-life class), and of the ten Freshmen elected to the U. S. Senate,
only two were pro-life (a 20 percent pro-life class – and one of those
two has declared opposition to preserving marriage as the union of one man and
one woman).

Clearly, there is a direct
correlation between evangelical voter turnout and electing leaders who reflect
basic Judeo-Christian values. Therefore, while Christians may not always see
the immediate tangible results of their vote on the evening news, nevertheless,
their vote does have a significant impact. Consequently, even if Christians are
frustrated over the direction of Congress (or its lack of spending restraints,
or moving forward highly publicized legislation, or whatever), they must always
remember that elections do have a direct impact on so many issues rarely
mentioned by the media, such as pro-family legislation and the confirmation of
judges. So, regardless of whatever else may be discussed in the upcoming
presidential election, citizens should vote with an awareness that the Supreme
Court needs just one more strict-constructionist Justice to have five solid
votes on the Court, thus potentially ending the federal judicial element of the
culture war.

Christians must therefore remain
faithfully involved at the ballot box. As the Rev. Matthias Burnet reminded
Christian citizens in his day:

Finally,
ye . . . whose high prerogative it is to . . . invest with office and authority
or to withhold them and in whose power it is to save or destroy your country,
consider well the important trust . . . which God . . . [has] put into your
hands. To God and posterity you are accountable for them. . . . Let not your
children have reason to curse you for giving up those rights and prostrating
those institutions which your fathers delivered to you. [84]

[36]
Townhall.com, “Chuck Colson: Give me that old-time religion—or else,
January 14, 2005” (at http://www.townhall.com/columnists/ChuckColson/2005/01/14/give_me_that_old-time_religionor_else):
“For example, Dr. Byron Johnson of the University of Pennsylvania studied
graduates of Prison Fellowship’s InnerChange Freedom Initiative program for two
years following their release. He found that they had a recidivism rate of only
8 percent compared to more than 20 percent for similar inmates and 67 percent
nationally.”

[43] See the
1817 Mississippi Constitution, Article VI, Section 7; the 1777 New York
Constitution, Article XXXIX; the 1778 South Carolina Constitution, Article XXI;
and the 1796 Tennessee Constitution, Article VIII, Section 1, that explain:
“Ministers of the Gospel are by their profession dedicated to the service of God
and the care of souls, and ought not to be diverted from the great duties of
their function.”

[50] Cynthia
Harper and Sara S. McLanahan, “Father Absence and Youth Incarceration” Journal
of Research on Adolescence, Volume 14,
Issue 3, p. 370. The study tracked a sample of 6,000 males aged 14-22 from
1979-93, finding that boys whose fathers were absent from the household had
double the odds of being incarcerated.

[54] Heritage
Foundation, “Family and Faith: The Roots of Prosperity, Stability and Freedom”
(at http://www.heritage.org/Research/Family/WM1.cfm);
see also U.S. Bureau of the Census, Money Income 1991, U.S. Government Printing
Office, Washington, DC, May 1991; U.S. General Accounting Office, Families on
Welfare: Teenage Mothers Least Likely to Become Self-Sufficient, U.S.
Government Printing Office, Washington, DC, May 1994; U.S. Department of Health
and Human Services, National Center for Health Statistics, Survey on Child
Health, Washington, DC, 1993.

[75]
Lifenews.com, “Associated Press Story Misleads on Partial-Birth Abortion
Polling” (at http://www.lifenews.com/nat3047.html):
“A March 2005 Harris poll found that 72% of Americans said abortion should be
illegal in the second three months of pregnancy, and 86% said abortion should
be illegal in the last three months of pregnancy. A late July 2006 poll by
Quinnipiac University found 76 percent of Americans believe partial-birth
abortions should be illegal except when necessary to save the life of the
mother.”; see also polls that place the percentage at about 70 percent:
LifeSiteNews.com, “Gallup Poll Says 70% in Favor of Partial Birth Abortion Ban”
(at http://www.lifesite.net/ldn/2003/feb/03021705.html);
The Gallup Organization, “Americans Agree With Banning ‘Partial-Birth
Abortion’” (at http://www.galluppoll.com/content/?ci=9658&pg=1).